Case hinges on tablet’s ability

By CHRIS OLWELL / The News Herald

Published: Thursday, March 28, 2013 at 08:32 PM.

Fosmire’s attorney, Ed Quintana, argued early in the hearing that he didn’t believe the device would simply turn itself on and asked Smiley to allow him to power up the device in court to test the veracity of that officer’s testimony.

“Without powering up the tablet we have no way of testing this testimony,” Quintana said, adding that it would be a fundamental violation of Fosmire’s right to due process not to test the device.

Prosecutors Jennifer Hawkins and Bob Sombathy, who said they didn’t plan to power up the device if the case goes to trial and instead would use photographs of the device, said powering up the device could compromise the evidence.

In Evans’ case, Smiley ruled earlier against him on a motion suppress, a decision he said he based on the notion that the device activated automatically when the officer lifted it up. Evans pleaded no contest to the charges not long after Smiley’s ruling and is serving a five-year prison sentence and is considered a sexual offender. A notice of appeal has been filed in that case.

Hawkins and Sombathy argued that the device must be analyzed using software that allows the data to be viewed but not manipulated at the Bay County Sheriff’s Office.

With the courthouse closed until the trial is scheduled to begin, Smiley instead called Officer Douglas Snow, who investigates electronic devices in criminal cases, who came to the courthouse to testify. Snow said powering up the device didn’t pose a risk to the evidence.

PANAMA CITY — After several hours of testimony and argument, the testimony of a police officer who said he activated a computer tablet simply by lifting it up was put to the test.

Unless Judge Elijah Smiley grants a motion to suppress evidence found on the tablet, Kayla Fosmire will go to trial next week on charges of promoting sexual performance by a child, child abuse and lewd and lascivious exhibition. Fosmire and her boyfriend, Nicholas Evans, were arrested last April after police found photos of Fosmire and Evans having sex in front of their 2-year-old child.

Panama City Police were actually called to their home to respond to a domestic dispute between Evans and Fosmire, but while they were inside they found fishing gear they suspected was stolen, according to testimony during Thursday’s hearing.

They also found several common electronic items — cellphones, televisions and the tablet that was the subject of much disagreement Thursday — and ran the serial numbers on those items to make sure they weren’t stolen as well. The officer who picked up the iPad-like tablet testified that, without touching any buttons, the device activated and showed a home screen depicting fishing equipment.

Attorneys argued several other issues, including whether Fosmire actually consented to the search — she denied giving consent, but signed a document indicating she did — and whether the police misled the judge in a search warrant application — police denied doing that.

Smiley initially indicated the fate of the motion hinged on whether or not the device would simply activate when lifted. If not, why was the officer looking through it when the serial number is on the exterior of the device, he reasoned. But if it powered up and showed potentially stolen fishing gear, the officer had probable cause to suspect there might more criminal evidence on the tablet.

“It’s the tablet part that’s got me concerned,” he said.

Fosmire’s attorney, Ed Quintana, argued early in the hearing that he didn’t believe the device would simply turn itself on and asked Smiley to allow him to power up the device in court to test the veracity of that officer’s testimony.

“Without powering up the tablet we have no way of testing this testimony,” Quintana said, adding that it would be a fundamental violation of Fosmire’s right to due process not to test the device.

Prosecutors Jennifer Hawkins and Bob Sombathy, who said they didn’t plan to power up the device if the case goes to trial and instead would use photographs of the device, said powering up the device could compromise the evidence.

In Evans’ case, Smiley ruled earlier against him on a motion suppress, a decision he said he based on the notion that the device activated automatically when the officer lifted it up. Evans pleaded no contest to the charges not long after Smiley’s ruling and is serving a five-year prison sentence and is considered a sexual offender. A notice of appeal has been filed in that case.

Hawkins and Sombathy argued that the device must be analyzed using software that allows the data to be viewed but not manipulated at the Bay County Sheriff’s Office.

With the courthouse closed until the trial is scheduled to begin, Smiley instead called Officer Douglas Snow, who investigates electronic devices in criminal cases, who came to the courthouse to testify. Snow said powering up the device didn’t pose a risk to the evidence.

“Absolutely it wouldn’t change anything substantially,” Snow said.

So they plugged the tablet in, powered it up and turned it on.

Smiley said he wanted two learn two things from the experiment. The first was whether the device would show fishing equipment when activated. It did.

The second was whether the device would automatically turn on when lifted. It did not.

Prosecutors asked him to demonstrate lifting the device and pressing a button, which did activate the device.

“A graze of the button will turn it on,” Snow said.

By then, Smiley seemed unmoved. He didn’t rule on the motion — he wants to ponder the decision over the weekend — but he hinted at his decision.

“I don’t think I’m persuaded to do anything different than what I’ve already done,” he said.